tion on intestate estates. The powers relative to these matters are committed to the governor, who acts ordinarily by a delegate. THE COURT OF THE GOVERNOR AND COUNCIL. The authority of this court is best seen in the instruction on which it depends. "Our will and pleasure is, that you, or the commander-inchief of our said province, for the time being, do all in civil causes, on application being made to you, or the commanderin-chief for the time being, for that purpose, permit and allow appeals, from any of the courts of common law in our said province, unto you or the commander-in-chief, and the council of our said province; and you are, for that purpose, to issue a writ, in the manner which has been usually accustomed, returnable before yourself and the council of our said province, who are to proceed to hear and determine such appeal; wherein such of our said council, as shall be at that time judges of the court from whence such appeal shall be so made, to you our captain-general, or to the commander-inchief for the time being, and to our said council, as aforesaid, shall not be admitted to vote upon the said appeal; but they may, nevertheless, be present at the hearing thereof, to give the reasons of the judgment given by them, in the causes, wherein such appeals shall be made. "Provided nevertheless, that in all such appeals, the sum or value appealed for, to exceed the sum of three hundred pounds sterling; and that security be first duly given by the appellant, to answer such charges as shall be awarded, in case the first sentence be affirmed; and if either party shall not rest satisfied with the judgment of you, or the commander-in-chief for the time being, and council as aforesaid, our will and pleasure is, that they may then appeal unto us in our privy council. Provided the sum or value so appealed for unto us, exceed five hundred pounds sterling, and that such appeal be made within fourteen days after sentence, and good security given by the appellant, that he will effectually prosecute the same and answer the condemnation, and also pay such costs and damages, as shall be awarded by us, in case the sentence of you, or the commander-in-chief for the time being, and council be affirmed. Provided neverthe *Before the arrival of sir Danvers Osborn, appeals were given to the governor and council, in all causes above £100 sterling, and to the king in council, in all those above £300 sterling. By this instruction, the power of the supreme court and of the governor and council, is prodigiously augmented. In this infant country few contracts are equal to the sums mentioned in the instruction, and therefore an uncontrolable authority in our courts may be dangerous to the property and liberties of the people. Proper checks upon judges preserve them hoth from indolence and corruption. less, where the matter in question relates to the taking or demanding any duty payable to us, or to any fee of office, or annual rent, or other such like matter or thing, where the rights in future may be bound, in all such cases, you are to admit an appeal to us in our privy council, though the immediate sum or value appealed for be of a less value. And it is our further will and pleasure, that in all cases where, by your instructions, you are to admit appeals to us in our privy council, execution be suspended, until the final determination of such appeals, unless good and sufficient security be given by the appellee, to make ample restitution of all that the appellant shall have lost, by means of such judgment or decree, in case upon the determination of such appeal, such decree or judgment should be reversed, and restitution awarded to the appellant." THE COURT OF CHANCERY. Of all our courts, none has been more obnoxious to the people than this. There have been (as I have already shown) few administrations since its first erection, in which our assemblies have not expressed their disapprobation of its constitution by ordinance, and the exercise of the chancellor's power by the governor. During the administration of Governor Cosby, a bill was filed by sir Joseph Eyles and others, to vacate the oblong patent granted by his immediate predecessor to Hauley & Company. The defendants excepted to the governor's jurisdiction, but being over-ruled they resorted to the assembly with a complaint, and the house, on the 6th of November, 1735, resolved, "That a court of chancery in this province, in the hands or under the exercise of a governor, without consent in general assembly, is contrary to law, unwarrantable, and of dangerous consequences to the liberties and properties of the people." The same sentiments obtained among the people in Mr. Clarke's time, as is very evident in the memorable address of the assembly, in 1737, a part of which, relative to the court of chancery, is too singular to be suppressed. "The settling and establishing of courts of general jurisdiction, for the due administration of justice is necessary in every country, and we conceive they ought to be settled and established, by the acts of the whole legislature, and their several jurisdictions and powers by that authority limited and appointed, especially courts that are to take cognizance of matters in a course of equity. This has been the constant practice in England, when new courts were to be erected, or old ones to be abolished or altered; and the several kings of England, in whose reigns those acts were made, never conceived, that the settling, erecting, or abolishing courts, by acts of the legislature, had any tendency to destroy or in the least to diminish their just and legal prerogatives. It was the method in use here, both before and since the revolution, and particularly recommended to the assembly to be done in that manner, by a message from governor Sloughter and council, on the 15th day of April, 1691. He was the first governor since the revolution; and the governors that since that time assented to those acts, we suppose, never in the least imagined they were giving up the prerogative of their masters when they gave that assent; nor did we ever learn that they were censured for doing so.-On the contrary, the constant instructions, that have from time to time been given to the governors of this province, seem clearly to point out the doing of it, by acts of the legislature, and not otherwise, as may be gathered from the instruction, for the erecting of a court for the determining of small causes, by which there are positive directions given to the governors, to recommend it to the assembly, that a law should be passed for that purpose; but notwithstanding these directions, given in direct and express terms, the governors never would apply for such an act, but erected that court by an ordinance of themselves and council, as they did the court of chancery, which had before that time been erected by acts of the legislature in another manner. They could not be ignorant what dissatisfaction the erecting of a court of chancery in that manner gave the generality of the people. This was very manifest, by the resolves of the general assembly, at the time of its first being so erected, and often since, declaring the illegality of such a proceeding. And though these resolves have been, as often as made, treated by the governors with an unreasonable disregard and contempt of them, yet to men of prudence, they might have been effectual, to have made them decline persisting in a procedure, so illegal and so generally dissatisfactory; and which (as they managed it) proved of no use to the public or benefit to themselves. For as few of them had talents equal to the task of a chancellor, which they had undertaken to perform, so it was executed accordingly. Some of them being willing to hold such a court, others not, accordingly as they happened to be influenced by those about them. So that were it really established in the most legal manner (as it was not) yet being in the hands of a person not compellable to do his duty, it was so managed, that the extraordinary delays and fruitless expense attending it, rendered it not only useless, but a grievance to the inhabitants, especially those who were so unfortunate as to be concerned in it: which we hope you think with us, that it is high time should be redressed. "Your honour well knows, that the establishing that court, in the manner it has been done, has been a subject of contention between the governors and the assembly; and since it is centessed by all, that the establishing both of that, and other courts, by act of the legislature, is indisputably legal, and gives them the most incontrovertible authority; and, if unquestionably legal, what is so cannot be destructive of his majesty's prerogative. We therefore hope, you will make no scruple of assenting to this bill, to put an end to the contention, that has not been, nor will be, while it continues, beneficial to his majesty's service.' From this time the chancery has been unattacked by the assembly, but the business transacted in it is very inconsiderable. A court of equity is absolutely necessary, for the due administration of justice; but whether private property ought to be in the hands of the governors, I leave others to determine. As the public business of the colony increases, few of them, I believe, will be ambitious of the chancellor's office, as they have not the assistance of a master of the rolls. The present officers of this court (which is always held in the council-chamber at the fort) are, his excellency, sir Charles Hardy, knt. chancellor, two masters, two clerks, one examiner, a register, and a sergeant-at-arms, and not one of them has a salary. In our proceedings we copy after the chancery in England, and indeed in all our courts, the practice at home is more nearly imitated in this and NewJersey, than in any other province upon the continent. Few of our assemblies have been capable to concert any new regulations of this kind; and hence the lawyers have had recourse to the English customs and forms, which they have generally adopted. While the New-England colonies, through the superior education of their representatives, have introduced numberless innovations peculiar to themselves; the laws of our mother country have gradually obtained here, and in this respect, the public has perhaps received advantages, even from the ignorance of our ancestors. * Some are of opinion, that the governor's jurisdiction in this and the spiritual, or prerogative court, are incompatible. END OF VOL. I. |